Despite a New Year, the same old legal issues keep on arising and coming back with monotonous regularity – for both Parliament and the Supreme Court. Indeed, Parliament’s attention is likely to be consumed the next few years with the Brexit discussions and related international treaties and trade agreements in a never ending, repetitive cycle. For the legal sector, Brexit in a variety of ways is likely to appeared before the courts repeatedly, like a bad soap opera that shows no sign of ever ending. There are some other cases, relics of a seemingly previous age, which also repeatedly demand attention.
One such case came before the Supreme Court in January, reminding the Supreme Justices that a New Year does not necessarily mean a new collection of cases and legal issues: the case of Belhaj & Ors vs Straw & Ors  (UKSC3). After the case was heard before the Court of Appeal in 2014, and leave to appear before the Supreme Court granted, Law Ninja commented on the case: http://www.lawninja.co.uk/human-rights/extraordinary-rendition-and-the-rule-of-law/. It has now taken three years for the case to be finally determined.
To summarise the case as far as an editor watching the word count will allow, Mr Belhaj was a military commander in Libya who fled Colonel Gadaffi’s regime. He and his wife were detained in Kuala Lumpur in 2004, and were rendited to Libya via Thailand, where they were tortured as opponents of Colonel Gadaffi. Released in 2010, Mr Belhaj entered Libyan politics. However, their journey and return to Libya was not all it seemed, as evidence emerged of alleged US and UK involvement in assisting the Libyans to return the couple to Libya, arrest and torture.
This case was heard with another related case, that of Mr Rahmatullah, detained by British forces in 2004, and transferred to US custody in Bagram Air Base. He was kept in custody without charge for ten years, and claims that British agents aided and abetted his detention and mistreatment. The Government, in rebutting the allegations, has long cited state immunity, and foreign acts of state.
For the sake of the litigation before the Supreme Court, the polite fiction was adopted that the alleged mistreatment of both men had indeed taken place. The Law Ninja is keen to emphasise a certain point here, and quotes directly from the earlier 2014 post:
It must be stated that the British government has never condoned or used torture. Torture, or anything resembling torture or mistreatment, is absolutely verboten in British intelligence, law enforcement, and the military. Britain is very keen to uphold the relevant human rights legislation, and UN resolutions, as regards torture
Written in 2014 – that is still very much the case in 2017. The point of law raised by the litigation is not whether the complicity or mistreatment took place – but whether the British government is liable in legal theory for any any such mistreatment committed by a third nation that took place with the knowledge of British Government agents or diplomats. As such, the legal fiction of the Government’s complicity was adopted; the allegations of complicity still need to be investigated and assessed. That, however, is for further litigation and possible Parliamentary investigations to determine. Of such are the legal gymnastics and double think that often occur before the Supreme Court.
The defence of the Government at the time – in the form of then Foreign Secretary Jack Straw, the named Appellant- has long been state immunity, and foreign acts of state. Both of those are complex points of public international law, of which even Lord Mance in his leading speech admits the “difficulties which exist [with] these strands are considerable.” Throughout the 136 page judgement, Lord Mance and the six other Judges submit complex and carefully reasoned concurring judgements – or simply agree with each other. The various strands of the linked doctrines of state immunity and foreign acts of state are tackled one by one.
Referring to a prior case, State Immunity is defined as the “absolute independence of every sovereign authority” together with the “international comity which induces every sovereign state to respect the independence and dignity of every other sovereign state.” Enshrined in domestic law in the State Immunity Act (1978), there are, however, derogations permitted from it. Paragraphs 29 to 31 conclude that establishing the Government’s liability “would involve establishing that various foreign states through their officials were the prime actors in respect of the alleged torts.”
Finding overall that “the legal position of the foreign states, the conduct of whose officials is alleged to have been tortious in the places where such conduct occurred, will not be affected in any legal sense by proceedings to which they are not party”, the appeal on that ground is dismissed.
Concerning Foreign Acts of State, it is noted repeatedly that as a point of legal principle and policy certain actions of foreign states or agents, even abroad, are non – justiciable (will not be adjudicated on or otherwise legally brought into question). Such a legal tradition and policy is set out as extremely wide, and still developing, with whether certain foreign state actions are actually non – justicable decided in a case by case basis. Amongst other arguments, it is noted that in UK law and legal policy, torture or similar mistreatment is prohibited, with any such actions seen as a breach of exisiting domestic human rights law.
Consequently, there are legal grounds for, in this particular case, adjudicating in the actions of a foreign state. At Paragraph 99, there is “no reason why English law should refrain from scrutinising their conduct in the course of adjudicating upon claims against other parties involved who enjoy no such immunity here, where the alleged conduct involves almost indefinite detention, combined with deprivation of any form of access to justice and, for good measure, torture or persistent ill-treatment of an individual… [Where] fundamental human rights are in play, the courts of this country will not abstain from reviewing the legitimacy of the actions of a foreign sovereign state.”
With British courts able to legally question the action of the Libyan and Malaysian authorities in the nature of the rendition and subsequent torture, it follows that any alleged British or American involvement can also be investigated. Consequently, for those and other legal grounds, the Government’s appeal was dismissed. Mr Belhaj and the other plaintiffs now have a right to sue Mr Straw and others in relation to the events, and to investigate the nature (if any) of any British involvement.
As such, after approaching a decade, the result of the Supreme Court verdict is – to start the whole litigation all over again. This is a case which will doubtless appear before the Supreme Court again in future years – unless an agreement with the Government is arrived at in the meantime. That latter course is extremely likely, given increasing moves towards settling tortious disputes out of court.
Before this case re-appears again before the Supreme Court, matters such as Brexit and ensuing international relations need to be settled on, probably with monotonous regularity for the Supreme Justices. However, in dealing with the legal issues concerning such a fundamental alteration of international relations, after Belhaj vs Straw , in increasing circumstances there is now greater scope for the actions of those European States to be challenged and adjudicated on by British courts.
Although the former Labour government was soundly defeated in this instance – such a verdict could actually be of use to the current Conservative government in upcoming negotiations. Although a reminder of events in past years, it is an interesting precedent for future years with which to start 2017.